Cheat Sheet: A guide to the NLRB recess appointment controversy

How lawmakers and lawyers are responding to the uncertainty surrounding key labor issues


President Barack Obama’s first term saw a spate of pro-labor rulings emerging from the National Labor Relations Board (NLRB), which included three Democratic members with links to unions. The board’s rulings, including regulations covering social media, union elections and right-to-work issues, worried employers and Republican legislators alike.

What caused the current uncertainty surrounding the NLRB?

In January, the D.C. Circuit ruled in Noel Canning v. NLRB that President Barack Obama’s appointments of Sharon Block, Richard Griffin and Terence Flynn to the NLRB were unconstitutional because they were made while the Senate was in recess. The decision, if it stands, could invalidate the board’s decisions and rulemaking stretching back to at least January 2012—when Obama made the appointments—because the five-member board would not have had the quorum necessary to make decisions.  On June 24, the Supreme Court agreed to hear the case during its fall term.

What NLRB decisions could be invalidated if the two appeals court rulings  stand?

Among the more significant decisions to be thrown into jeopardy  is  D.R. Horton Inc.—currently on appeal before the 5th Circuit—which struck down class action waivers in arbitration agreements. Another is the so-called “quickie election rule,” which shortens the time frame for union representation elections from 56 days to 30 days.

Has President Obama tried to fill the  empty NLRB seats?

What has the Republican response to the NLRB controversy been?

What does the uncertainty surrounding the NLRB mean for in-house and outside counsel?

Naturally, the board’s ambiguous status has made it difficult for labor attorneys to advise their in-house clients on NLRB issues. “It’s frustrating as a lawyer trying to advise his clients on how they should act lawfully,” Barnes & Thornburg Partner David Ritter says. “It’s hard to give advice in an uncertain situation.”

Alanna Byrne

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Mary Swanton

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